The U.S. Supreme Court could resolve a pressing First Amendment conflict and
help guide school administrators, teachers, students and parents in dress-code
controversies nationwide if it accepts the case of Palmer v.
Waxahachie Independent School District.
A dispute arose in September 2007 when then-sophomore student Paul T. “Pete”
Palmer wore a T-shirt that said “San Diego.” Waxahachie, Texas, school officials
sent him home for noncompliance with a broad dress code that prohibited T-shirts
with printed messages. Palmer returned with a “John Edwards for President 08”
T-shirt. Again officials prohibited his shirt because it bore a printed
Palmer challenged the dress code in federal court in April 2008, alleging it
violated the First Amendment. The school district responded with a new dress
code that restricted even more speech, including polo-style shirts with any
messages, shirts with professional sports-team logos and clothing with
university names. Interestingly, the dress code did permit some message shirts —
those promoting campus-approved curricular clubs and organizations, athletic
teams or school spirit shirts.
After reading the new dress code policy, Palmer submitted three T-shirts for
review: (1) the first Edwards for President shirt, (2) a “John Edwards for
President” polo shirt and (3) a T-shirt with “Freedom of Speech” on the front
and the text of the First Amendment on the back. The school district rejected
Palmer contends that the case should be evaluated under the Supreme Court’s
four pure student-speech cases: Tinker
v. Des Moines Independent Community School District (1969), Bethel
School District v. Fraser (1986), Hazelwood
School District v. Kuhlmeier (1988) and Morse
v. Frederick (2007).
In Tinker, the Court ruled that public school officials violated the
First Amendment by suspending students for wearing black armbands to school. The
Court created the Tinker standard, which has guided many courts for 40
years — that public school officials cannot restrict student speech unless they
can reasonably forecast that it will cause a substantial disruption.
In Fraser, the Court ruled that school officials did not violate the
First Amendment when they suspended a student for making a vulgar speech before
the school assembly in nominating a fellow student for elective office. The
Court found that schools can prohibit student speech that is vulgar or lewd. In
Hazelwood, the Court ruled that a school did not violate the First
Amendment by censoring two articles from a school-sponsored student newspaper.
The Court ruled that educators have much greater leeway to regulate
school-sponsored student speech than student-initiated speech. In Morse,
the Court said school officials did not violate the First Amendment when they
punished a student for displaying a banner with the message “Bong Hits 4 Jesus”
just off school grounds during a school-sanctioned event. The Court held that
public school officials can restrict student expression that they reasonably
believe advocates illegal drug use.
These four cases comprise the legal universe for many student-expression
cases. Palmer asserts that his political T-shirts were not substantially
disruptive, lewd, school-sponsored, or pro-drug within the meaning of the
Supreme Court student-speech cases. Thus, he argues he should have the right to
don these shirts, which feature pure political speech — the type of speech at
the core of the First Amendment.
However, a federal judge and later the 5th U.S. Circuit Court of Appeals
ruled in its opinion
that those cases did not control another broad type of student-speech regulation
— regulations that are content-neutral and viewpoint-neutral. The court reasoned
that a uniform or dress code that applies across the board, and prohibits a vast
array of student speech regardless of content or viewpoint, is
According to the 5th Circuit, Palmer’s case must be evaluated through the
analytical prism of a non-student-speech case, United
States v. O’Brien (1968). In that case, an anti-war protester burned his
draft card on the steps of a South Boston courthouse. The Court created a
standard for evaluating restrictions on expressive conduct that involves both
speech and conduct. Under the O’Brien test, a regulation is
constitutional if it furthers a substantial government interest, the
government’s interest is unrelated to the suppression of free expression and the
incidental restrictions on free speech are no more than are necessary to further
the government’s interest.
In previous cases, the 5th Circuit has used the O’Brien standard to
evaluate and reject First Amendment-based challenges to school-uniform and
In his petition to the U.S. Supreme Court to grant his case a hearing, Palmer
contends that the Court should take the case to decide whether school officials
and lower courts can avoid Tinker and its progeny and instead apply the
more lenient O’Brien standard.
In school districts that adopt uniforms or restrictive dress codes, students
may lose the right to wear T-shirts proclaiming even pure political speech
because the regulation is deemed content-neutral. Some student-rights advocates
fear that the continued application of the O’Brien standard waters down
and reduces Tinker to a case purely about viewpoint discrimination.
Gary Klahr, an attorney who has handled challenges to school uniforms and
dress codes, warns that “Tinker will be a dead letter unless the U.S. Supreme
Court takes the Palmer case and sets forth clearly that the O’Brien test has no
place in student speech cases.”
It could be argued that the 5th Circuit erred even in finding that the dress
code at Palmer’s school was content-neutral, as it exempted shirts of student
curricular clubs, school athletic teams and the like. (The opinion mentioned but
did not discuss the original disallowed “San Diego” shirt.) Allowing student
dress with approved messages but disapproving of student messages about
political candidates seems to constitute content discrimination.
The panel did say that students could still wear small logos, such as appear
on polo shirts. However, perhaps most ominously, the 5th Circuit ruled that “so
long as a dress code does not restrict student dress outside of school and
provides [students] with some means to communicate their speech during school,
it passes” the O’Brien test.
This reasoning intensifies the urgent need for Supreme Court review, because
such a rationale could swallow even a narrow reading of Tinker to
prohibit even the wearing of logos or black armbands. “Under the Fifth Circuit’s
approach, the prohibition on armbands struck down by the Court in Tinker
would have survived scrutiny because the students could have worn their armbands
after school and at home, and could have expressed their views to the small
number of students with whom they conversed during the school day,” Palmer’s
The petition adds: “The Court’s review is needed now to settle the important
legal issues at stake and provide clarity about the scope of student-speech
rights for students, parents, and school officials alike.”